“Contrary to most people’s images of pirate crews, they were quite large. Based on figures from 37 pirate ships between 1716 and 1726, it appears the average crew had about 80 members … crews of 150-200 were not uncommon…

“Unlike the swash-buckling psychopaths of fiction, historical pirates displayed sophisticated organization and coordination… They successfully cooperated with hundreds of other rogues. Amidst ubiquitous potential for conflict, they rarely fought, stole from, or deceived one another.”

Leeson also observes that pirates considered theft aboard their ships especially heinous, and he quotes an observer who said, “great robbers as they are to all besides, [pirates] are precisely just among themselves”.

Modern law firms invite comparisons with these pirate organisations, with law firms appearing to have improved the business model.

…

Modern lawyer piracy is not constrained by the law either, but for different reasons.

Lawyer/pirates control the wording of the law. They make sure it can’t easily reach out to them.

On top of that they are in charge of decisions to prosecute. Better still, unlike ordinary pirates, lawyers CAN rely on the judicial institutions to help them.

The judiciary is full of “successful” former lawyer pirates, who find it difficult to criticise others for doing what they themselves used to do.

There is a lot of camaraderie and “collegiality” in the legal profession, but perhaps the best devices of the lot are “disciplinary tribunals” actually dominated by current or former lawyer pirates, which contain a smattering of “lay” people to support claims of independence from the profession.

When lawyers are caught committing lawyering crimes, they can be shunted off to friendly tribunals instead of the ordinary criminal courts.

Last month NSW lawyer Leon Nikolaidis was sentenced to two years jail for criminal fraud, having been found guilty by a jury in an ordinary criminal court.

Unusually, this jailing of a lawyer was not for a trust account defalcation. NSW Legal Services Commissioner Steve Mark…said it was one of the few occasions when a solicitor had been convicted of criminal fraud within a legal practice. He said:

“There is a perception that a lawyer acting in a professional capacity attracts conduct charges, but not criminal charges… Even serious misconduct issues almost never lead to criminal prosecutions.”

There is one big exception. As with those old time pirates, thieving off other lawyers is regarded as particularly heinous.

Theft by lawyers from trust accounts is a bit like thieving off other lawyers, since it frequently results in claims against fidelity funds which the other lawyers have to keep topped up from their own pockets.

This fits in precisely with a discussion Stephen and I were having in the comments section of a previous post, wherein we noted that the ethical breach which is seen as particularly heinous by the profession is the trust defalcation. Our theory was in part that such breaches are easy to prosecute, dealing with numbers rather than thorny questions of ethics, and the prophylactic nature of the fiduciary obligation ensures that any defalcation will be a clear breach. But this article provides another explanation for the prevalence of trust defalcations as an ethical breach: essentially, lawyers who defalcate from trust funds steal from other lawyers, and therefore are treated particularly harshly.

Whereas lawyers stealing from clients…well, who is to judge? Other lawyers.

Services are a hard thing to give a monetary value. And the situation gets particularly thorny when one represents a client, and the client loses. Strangely enough, the client doesn’t feel like paying the bill any more, even though the lawyer may have done the best possible job in the circumstances.

I think a lot of the problems with billing arise from six minute billable units, which were the subject of my second post on this blog, so obviously they’ve been a bugbear of mine for a while. I was trying to explain the concept to some non-lawyer acquaintances who were simply agog at the notion. “What, you charge for every six minutes you spend on a file? Doesn’t that rack up awfully quickly?” said the non-lawyers. Well, yes. And that’s the idea. But further to that, one’s promotion within a law firm depends on the number of billable units one racks up.

So six minute units provide an incentive to:

(a) be inefficient;

(b) be a workaholic and work insane hours to get ahead; and/or

(c) lie about how long something took you.

Unfortunately for me, both (a) and (c) are totally against my world-view. And once I had a family, I had no desire to keep on being a workaholic. So I quit being a solicitor.

I’m sure there are a lot of lawyers who are less scrupulous than I with regard to fudging the figures. They figure everyone does it, and if they just massage it up a little bit, who’s going to notice? The satirical book Hell has Harbour Views features lawyers who routinely bill 27 hours a day (even if they’ve stayed up all night, it has to be false, think about it). I couldn’t laugh too hard at this – too close to the bone.

The difficulty is in judging when a bill is too large. Little increases are hard to pick up. Of course, as I noted in my earlier post, the Legal Practice regime in Victoria seeks to ensure solicitors go into an immense deal of detail in their bills. And it requires solicitors to offer an effective invite on the face of the bill for the client to complain or sue. This doesn’t really fix the problem. A poor old client has to get involved in further litigation. Why not try to stop the incentives to overbill by abolishing six minute billable units?

Obviously, there’s a need for something to change. As I said in another very early post, I think legal services are beyond the range of many ordinary people. And this may lead to the high volume of litigants in person in the court system, who believe that they are better off running their own case. In some instances, they may be right: I’ve seen some terrible lawyers out there.

If the legal profession wants respect in the community, it has to look at legal ethics as more than just trust defalcation. Good legal ethics also means charging clients a fair price, and doing a good job. I believe that if we deemphasise billable hours, this would improve morale and efficiency in law firms, and take away the incentive to “fudge the figures”.

I really hate being a sessional lecturer. Most of the time, I feel like I’m an un-person as far as this university is concerned. I do not have a proper office; I have to squat in the office of whichever person happens to be on leave at the time. I do not have a proper phone number; I have the phone of the person in whose office I am presently “squatting”, so there’s no point writing it down as a contact number, because it will change in a few months. I am not on the official website as a staff member. I’m not on the staff e-mail list. I do not get a business card. I do not get a parking space. I have to pay an exorbitant yearly fee in order to be able to park in the staff parking lot. Ironically, if I had a proper ongoing position, I would not have to pay this fee, even though my income would be higher. I don’t get sick days, I don’t get holiday pay and I don’t get maternity leave.

Worst of all, I have no job security or certainty. At meetings, people often factor me into next year’s plans and ask me what I think about the syllabus or a particular point of law. I have to quietly remind them that I don’t know what I’ll be doing next year. I don’t even know if I’ll still be teaching at the university, although I hope and presume that I will be. And I certainly don’t know what subjects I will be teaching. I won’t find out for a while yet.

It’s been going on this way for a year and a half so far. It looks like it’s going to keep on going for at least another year. Sometimes I find it soul destroying. Other days, I try to look on the bright side, and consider myself lucky to have a job at all.

The issue reared its ugly head again because I found out today that I was left off an e-mail list, as I am not on the list of “staff members”. I almost missed out on an important piece of information as a result. It’s times like this when I feel deeply resentful and angry. Other staff say, “Don’t worry, they’ll employ you as ongoing eventually, you just have to wait and be patient.” That’s bloody hard to do when you have a family and a mortgage to pay.

I’m sure it will all work out in the end, and this will be a faint memory. But I just need to get this out of my system now, so that I can go home and be happy for my darling little girl. After all, I work to live, not live to work.

Lately, I just haven’t felt inspired by blogging. I don’t know why. Perhaps it’s the midwinter blues. Perhaps I’ve just been working too hard (full time thesis, preparing for next semester, doing consulting work, looking after baby, blogging…all too much?)

Or perhaps it’s finding out that we have to move again when our lease ends in November. I am sad. I love the place we are presently living in. It’s close to Mum and Dad, it’s spacious, it’s not too far from either of my or my husband’s workplaces.

I am really “over” renting. The way in which renting operates in Australia means that you don’t have any sense of permanency or security. Typically, leases are short (6 months to a year) and tenants don’t have any rights even to hang pictures on the wall. But I don’t see how we could afford to buy a place right now. I am still “on contract”, and uni will only confirm that it is renewing my contract at the end of the year. And what if we want to have another child?
I’ve heard a few politicians say things about housing affordability lately. Kevin Rudd, for one, said that the housing affordability crisis had to be alleviated. That’s welcome news. But I’m a bit worried about the practicalities, and as far as I can see, Rudd didn’t get into the nitty gritty detail. As Andrew Bartlett pointed out recently, it is a complex problem and not one that will be easily fixable. For example, my sister has recently bought a place – if prices suddenly fall, her place will be worth less than she paid for it. And what of people who have invested in property with a mind to retirement? As Bartlett also argues, this doesn’t mean that we shouldn’t at least try to do something! I commend him for addressing the issue, and having a look at some of the complexities rather than just producing nice shiny sound bites.

Then I heard the Victorian government banging on about its 2030 plan, which means promoting high density living in “urban centres”. I am afraid I won’t be buying an apartment any time soon. For one thing, a “family sized” apartment is likely to cost nearly as much as a house anyway, so if I’m going to be indebted for life, I’d rather get a house. And the main thing which turns me off apartment living is noise and privacy issues. I worry that people might complain about our little girl if she cries or shouts. On the other hand, I also worry that people might party all night, like those Colombian exchange students two units down from us at our last place – they had regular weeknight parties which went until at least 3am in the morning, and the common living areas were trashed afterwards. These places had solid brick walls (unlike many modern apartments) and the noise still carried. I don’t think new places are built solidly enough (those plasterboard walls are hopeless).

I don’t know what the answer is. And I don’t know what we’ll do. I’m sure it will all work out in the end. As Mum says, I tend to fall on my feet, one way or another.

Anyway, that’s just an explanation of why I don’t think my blogs have been as sharp as normal, and why I haven’t been commenting as often.

Leon Gettler has a post about performance reviews on The Age blog. It struck a chord. I’m not the greatest fan of performance reviews. I don’t think I’ve ever had one which has been helpful. Most of the time, they have been “rubber stamp” affairs, with bosses ticking various boxes just so that we can say that we’ve gone through the process (thus keeping the HR department off our backs).

Gettler cites a study by Personnel Decisions International (PDI) which found that, where employees report to multiple bosses, the employees’ performance ratings were inconsistent, and sometimes bosses gave wildly varying ratings.

In a study of 5,970 employees reporting to two bosses, employees who were rated “Outstanding – one of the best” by the first boss, were rated lower by the other boss 62% of the time and only “Somewhat above average” or less 29% of the time.

“Unfortunately, the concept of rater bias is something that almost every company encounters,” explains Brian Davis, executive vice president, practice areas at PDI. “This basically means that bosses are rating employee performance through their own biases. Some bosses tend to rate employees on how well they like them, rather than how well the employee performs. Other bosses tend to have their own rating systems where, for example, they rate everyone well. The problem with rater-bias is that it takes away the organization’s ability to objectively use data from performance evaluations with any validity.”

Apparently part of the problem arises when performance assessments do not address specific competencies or criteria.

“When two bosses are involved, it is crucial to use common standards for rating employee performance,” Davis continued. “By knowing which skills and competencies are important for the work and what types of behaviors constitute an ‘average’ rating compared to an ‘above average’ rating, for example, the entire validity and value of performance evaluations greatly improves.”

“When standards are not used, you can’t count on the objectivity or accuracy of a performance assessment and you have no differentiating data that allows you to make confident decisions about promotions, training or leadership development,” Davis continued. “Today’s best companies simply cannot leave their talent management decisions to chance. They need to know that the time and effort put into performance evaluation have a return on investment of making better talent management decisions.”

Even if there are standards, some performance criteria are useless. What does “communicates well” mean? “Communicates well” with whom? Clients, co-workers or bosses? I’ve spoken before about the problem of people who are very good at managing upwards (communicating with their bosses) but may be very bad at managing downwards. Nonetheless, because it is the boss’ impression which counts, these people move on up in an organisation, even when their bad management style leads to massive attrition. “Must be the junior employees’ fault – no backbone or loyalty,” think the ultimate bosses or partners.

The problem is that promotions and salary increases may depend on these ridiculous exercises. Bad practices can filter through the whole organisation. If you see someone promoted on the basis of personal friendship, despite the fact that he or she is not qualified for the job, it is absolutely demoralising. You begin to wonder what you are doing at the organisation or firm.

It has always seemed to me that if your manager is competent, you don’t need to have a performance review. You have an idea of how you are performing and what your duties are. You know whether you are likely to progress and that your work is appreciated.

Unfortunately, real life ain’t like that most of the time. It’s probably good to force people to think about how they manage their junior employees, as well as giving junior employees a chance to tell management of any problems. But I think that the “check the box” performance review is a poor way of doing it.

Eitan Erez is a candidate for the Israel Bar Association. Check out this report in Israeli newspaper Ha’aretz:

When Erez, 52, was certified as an attorney 26 years ago, only 7,000 lawyers were registered with the Israel Bar Association. After the upcoming certification ceremony, it will have 38,000 members.

“Do you now what an honor it once was to be a lawyer? Do you know how proud my parents were when I became a lawyer? Today a lawyer is worth less than a taxi driver. Lawyers work as house painters, plumbers and plasterers. A lawyer who works as a plumber takes on traffic cases once every 10 days, when he goes to represent people for NIS 300-NIS 400. That’s what we’ve come to. The rates are too cheap, it’s impossible to work for such fees, and lawyers who work for such fees cannot buy books, computers, equipment. They can’t keep up-to-date, attend continuing education courses. That’s why there are more claims of professional negligence afterward.”

I found this article via Adrian the Cabbie’s website, Cablog. He thinks he’s a cabbie in the wrong city (or possibly) the wrong country.

He recently drove a lawyer in his cab, and to earn the same amount of money as the hourly rate of this lawyer, he’d have to drive for 38 hours. Must have been a QC. The fees those guys charge are absolutely crazy – $2000 an hour. I can’t even imagine that kind of money. However, the perception that all lawyers are rolling in money is not correct. Lawyers who don’t work for big firms often don’t earn any more than “normal people”. This is especially so of lawyers who work for small firms, regional firms, Legal Aid, government, the Department of Public Prosecutions and the like. Another point is that junior lawyers don’t actually get the money they charge out at. I might have been charged out at, say, $200 an hour, but I wouldn’t actually get that money in my pocket. A lot of it would go to the firm.

I reckon I’d earn about the same amount as a cabbie these days. Maybe a little less. Should I become a cabbie instead?

Pros:

I like people

I like talking

I like political, philosophical and religious discussions, and wouldn’t mind if someone tried to engage me in one

I have a reasonably good knowledge of Melbourne and surrounds

Cons:

As I have explained before, I find driving very stressful and frustrating at times

I hate shift work

I wouldn’t know what to do if violent people got into my cab

There’s that same billable hours problem that lawyers have – how much you earn depends on how much time you spend in the car – hard with a young family!

So, I think I’ll stick with the law lecturing gig for the moment. 😉 Much more my cup of tea.

Seriously, however, there are a couple of interesting points raised by the Ha’aretz article. First, Erez raises the issue of increasing numbers of graduates. Things are similar here. At the entry stage, the market is absolutely flooded with young law graduates seeking articles, such that it’s very difficult to get a place. However, there is a massive shortage of lawyers at a second- third- and fourth-year level. I thought that I might find it difficult to get position as a junior solicitor after a number of years at the court. They were rather stuck as to how to categorise me given that I hadn’t been rising up through a law firm, but it wasn’t at all difficult to find a job! The question is whether you wanted to keep on going in that job…there’s a reason why there is such a dearth of young solicitors (see my posts on the law and depression here, here and here). Lack of morale is a serious issue which has finally come to the notice of the firms, I think, after recent publicity.

Another serious issue raised by Erez is the low public opinion of lawyers. I must confess that some of us are our own worst enemies in this regard. Some lawyers behave arrogantly and unpleasantly towards others: colleagues, litigants, opponents, random cute furry animals, anyone who crosses their path. Some use the law to bully and intimidate (like that Judge with the US$65M claim for a pair of lost pants). Some lawyers think that being a lawyer means the law doesn’t apply to them or gives them carte blanche to get around the law (like the recent notoriouscase of the lawyer with a dangerous strain of TB who illegally left the USA to go on his honeymoon). Then there’s the whole perception that we get guilty people “off”, described in a post (which coincidentally starts out with a conversation with a cab driver). And then there’s a perception that we argue for decisions which are against common sense (like the recent decision which held that a stationary driver on a hands free phone breached the law). Again there’s a crazy overlap between the law and cabbies… Maybe someone’s trying to give me a message??

I don’t think I’ll be putting down my law text books yet to drive a cab. But Erez’s comments do provide food for thought.

I was reading Mirko Bagaric’s post on lawyers and depression with interest. It’s a topical issue right now. Bagaric’s argument is that lawyers are driven by status and desire for material things to work long hours. He says:

Still there is even scope for lawyers to crank up a smile. The key rests with working shorter hours, not personalising uncertainties brought about by the actions of their clients and working in areas of law which cohere with their intrinsic interests and provide them with a sense of civic fulfilment.

Why am I a lawyer? As I have described in a previous post, I do actually love the law. Let’s look at why:

I love figuring things out. Being a lawyer gives me the same kind of pleasure that doing a cryptic crossword brings. There’s a sense in which being a lawyer is like being a historian or an archaeologist – searching through the past to build a picture of what happened and why.

I love words. Law is all about words, nuance, what is said and what is written. I love telling stories.

I love debating. I like to think of both sides of the story, to look at things from different angles and then put it all into an argument.

I love fixing things for people and helping people. I like it when a case ends well, when justice is done, when an outcome is fair. I hate to see people bullied, and I really hate seeing people lose out because they have less legal resources than the other side.

I love knowledge. I like the fact that I have the skills to research the law and to understand it. I like the fact that I can use this to help others.

Unfortunately, working in a law firm only occasionally involved the things mentioned in the bullet points above. I liked the people I worked with, but I don’t miss the work.

I think Bagaric is right. Lawyers lack control over their own destiny. They are pushed and pulled this way and that – by the client, by changes in the law, by partners (if they are junior lawyers), by judges (if they are litigators) and by the demands of the market. One of the things which made me most miserable about being a solicitor was that I couldn’t work in the way I like to work (which is spurts of enthusiasm followed by a period of “thinking” before I send anything out). Because of the six minute billing regime, I had to fill every minute of the day.

Often, my plans for the day would be totally thrown out because some other person above me in the hierarchy had mismanaged their day – “You need to drop everything and do this, the client needs it now!” I would be punished for the failure of others to manage the workload properly. What could have been done properly would end up being a rushed job.

At one point in one of the firms at which I worked, morning teas were banned because they were cutting into billing time. This attitude is disastrous for morale, and does not help productivity. By pausing and smelling the roses, you can get everything in perspective. You can talk to your colleagues and see if they have any solutions or suggestions for a difficult file.

All too often, my job involved just mechanically going through the motions and doing jobs that required no brain power at all. My strength is not in the mechanical, but in research and in being creative. I felt my strengths were not being utilised to the full.

Bagaric suggests that shorter hours would help. Shorter and more reasonable working hours are an important part of the puzzle, but not the only piece. Part of the problem is that modern technology and expectations mean that a client thinks that a lawyer should be contactable any time, anywhere. A firm has to be strong and resist the psychos who stay at work for 15 hours a day because they have nothing else to do. Unfortunately, because of the way in which high billing levels lead to promotion, these are the kind of people who get promoted, and then expect others to work in the same way.

Part of the battle is to know how to react when conflict and stress come up, to know how to manage junior staff, administrative staff and senior staff, and to be honest about your own weaknesses. I know that I’m not so good on mechanical stuff, and so I tried to manage that by putting in place various tactics to stop me stuffing up through sheer boredom.

I don’t think, that the lawyer blues are all down to material greed and status. Certainly, some lawyers are like that, but others just get stuck in the treadmill and don’t know what else to do. So they keep going up the chain, miserably, as their enthusiasm for the law is squashed from them bit by bit.

I am not interested in material gain or status. Well, let’s not go overboard…I want to have enough to live and eat, and have the occasional treat. One day it would be nice to be able to afford a house, but I’d rather be happy and renting than unhappy with a house.

One thing I have found very fulfilling is volunteering at a community legal centre. I like being able to help people who can’t afford to pay for legal advice and don’t know what to do. For any lawyers out there who are wondering whether being a lawyer does any good for the world, I thoroughly recommend it. I also like teaching people about the law – both in my present job and by writing this blog. I think it’s really important to empower people by letting them know what the law is all about.

To those lawyers out there who are feeling blue – you are not alone – but hopefully, if enough of us get together and change the way things are, there will be a change in the profession.

Postscript

Jim Belshaw has also written two goodposts on the issue, with an emphasis on the way in which management can deal with depression in the workplace.